SSHD Appeal Against Revocation of Deportation Order - Dismissed
Secretary of State for the Home Department v ZP (India)  EWCA Civ 1197 (24 November 2015)
Lord Justice Underhill :
1. The Respondent is an Indian national, born on 12 January 1969. She came to this country on 10 September 2002 on a visitor visa. She became involved in a conspiracy to facilitate bogus marriages for immigration purposes, and indeed she entered into such a marriage herself and obtained an extension of her leave to remain on that basis. In May 2003 she was arrested and charged in relation to those offences. She fled to India and was convicted in her absence.
2. On 14 January 2005, while still in India, the Respondent married another British national ("RO"). It is common ground that that marriage was lawful, so presumably her previous marriage had been dissolved. She applied for leave to enter the UK as his wife, using a false Indian passport in another name. She made an application for leave in her assumed identity on 31 May 2005. This was granted on the 30 June 2005 and she re-entered the UK on 16 July 2005. It is common ground that her husband was at the time wholly unaware of her history.
3. On 28 September 2006 the Respondent gave birth to a son ("YO"). She was granted indefinite leave to remain – again, in her false identity – on 19 July 2007.
4. Shortly afterwards the Respondent's true identity was discovered. On 17 January 2008 she was sentenced to twelve months' imprisonment for obtaining leave to enter the UK by deception and also to twelve months' imprisonment in respect of the offences on which she had been convicted in her absence in 2003, the two terms to run consecutively. A deportation order was made on 28 November 2008. She appealed, but her appeal was unsuccessful and she was deported on 6 November 2009.
5. The result of her deportation was that the Respondent was separated from her husband and son. At first the arrangement was that YO would spend part of his time with her in India and part with his father in this country, but after two years or so this was decided to be too unsettling for him and he now lives permanently here with his father.
6. On 7 April 2012 solicitors instructed on the Respondent's behalf applied for the deportation order to be revoked, so that she could come back to live with her husband (with whom it is common ground that she still enjoys a strong and subsisting relationship) and her son. She relies on article 8 of the European Convention of Human Rights and section 55 of the Borders Citizenship and Immigration Act 2009, and in particular on the seriously damaging effect on YO of being separated from his mother for so long a period. On 27 February 2013 the UK Borders Agency refused that application.
7. The Respondent appealed to the First-tier Tribunal ("the FTT"), which on 10 September 2013 dismissed the appeal. She appealed to the Upper Tribunal ("the UT") and at an error of law hearing on 28 November 2013 the FTT's decision was, by consent, set aside and an order was made for the decision to be re-made by the UT. A hearing took place before UTJ Conway on 8 January 2014. By a decision promulgated on 17 April he allowed the appeal and revoked the deportation order.
8. The Secretary of State appeals against that decision with the permission of Elias LJ. She has been represented before us by Mr John McKendrick of counsel. The Respondent has been represented by Mr Michael Biggs of counsel. The appeal has been well argued on both sides.
51. I would accordingly dismiss this appeal. I do not believe that the Secretary of State need fear that the decision of the UT in this case, or our upholding of it, will open the gates to a flood of cases in which post-deportation applicants who have had to leave children in the UK are granted early revocation of their deportation notices. It is only where the tribunal is persuaded that, exceptionally, there are very compelling reasons which outweigh the public interest in the order continuing for the full prescribed term that such revocation may be allowed. Each case will turn on its own facts, and the facts of the present case should not be taken as establishing any kind of benchmark.
R on the Application of Idira v SSHD
(Briefing note Bhatt Murphy Solicitors - For the defendant: Graham Denholm, Landmark Chambers & Jane Ryan, Bhatt Murphy
1. On 20 November 2015 the Court of Appeal handed down judgment in Idira v Secretary of State for the Home Department  EWCA Civ 1187. The claim raised important issues regarding the compatibility with Article 5(1)(f) ECHR of holding immigration detainees (specifically, post-sentence ex-offenders) in the prison estate.
2. The appellant was an Algerian national who was detained under immigration powers in prison from July 2013 to 21 March 2014 despite being assessed as suitable for transfer to an IRe. He was held in prison for this prolonged period as a result of two combined factors:
(a) First, a change in the Secretary of State's published detention policy in Chapter 55 of her Enforcement Instructions and Guidance (EIG 55) in January of 2012 meant that post-sentence foreign national ex-offenders would be held in the prison estate until all of the prison beds allocated to the Home Office were full, after which appropriately risk-assessed detainees would be transferred to IRCs; and
(b) Second, an increase in the number of such beds from 600 (as specified in the Service Level Agreement between NOMS and UKBA) to 1,000 (referred to within the Home Office as "Operation 1000") in late 2012 which resulted in all transfers from prisons to IRCs stopping. (Prior to the increase in available beds, the impact of the January 2012 change to EIG 55 had been limited).
Read more: Idira V SSHD
UKHO CIG - Afghanistan: Hindus and Sikhs
1.1 Basis of Claim
1.1.1 Fear of mistreatment or serious harm by state or non-state actors because the person is of the Sikh or Hindu religion.
Published on Refworld, 23/11/2015